The short answer is, no. The Singerdecision is narrow, non-binding, leaves other parts of the ordinance in place, and expressly leaves the door open for Newton (and other state and local governments) to enact more narrowly-tailored regulations on drones.
In a way, the four challenged provisions of the Newton ordinance were an easy call, because each conflicted with or effectively usurped existing FAA regulations. This allowed the court to invoke the doctrine of “conflict preemption,” as opposed to what is called “field preemption.”
“Field preemption” is invoked when the federal government occupies the entire field of an area of regulation that is within its Constitutional authority, even though it might not have enacted a specific regulation pertaining to the challenged state or local law. Significantly, the court rejected field preemption because the FAA has expressly left the door open to some state regulation of drone use (such as the privacy protections of Florida’s FUSA statute, which I discussed, here).
“Conflict preemption” means exactly what it implies: That when the federal government regulates an area within its Constitutional authority, those regulations are the supreme law of the land and the states may not enact laws that would contradict or undermine the federal regulation.
Briefly:
Section (b) of the Newton ordinance provided that “[o]wners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .” Because the FAA has held itself out as the exclusive authority for registration of aircraft, striking down this provision of the ordinance was that rare bird in litigation: a no-brainer. This is probably the broadest part of the decision, in that the court made it clear that the city may not require any kind of drone registration, period.
The ordinance at subsection (c)(1)(a) prohibited drone flights below an altitude of 400 feet over any private property without the express permission of the property owner. Also, subsection (c)(1)(e) prohibited flying drones over public property, at any altitude, without prior permission from the city. The court found that these provisions had the effect of banning all drone flights in the city, because FAA regulations restrict sUAS flights to below 400 feet AGL. While the FAA left the door open to some local regulation of drones, that should not be interpreted as license to effectively ban drone operations. This leaves the door open to the possibility of a more narrowly-drawn ordinance.
Finally, subsection (c)(1)(b) of the ordinance prohibited drones from being operated “at a distance beyond the visual line of sight of the Operator.” This was plainly duplicative of Part 107 and, as such, tended to usurp an express regulation of the FAA (which could, at some time in the future, change its mind about BVLoS operation).
The decision ends with a note that Newton is welcome to craft narrower regulations. Precisely what those regulations will look like is hard to say.
Whatever the case may be, one should not take this as an invalidation of drone regulations in one’s particular state or city. The court only addressed these specific provisions of the Newton ordinance, and the decision has no binding effect on other courts, let alone other states and municipalities.
But let us not detract from the significance of this win, either. Major kudos are in order for the petitioner, Dr. Michael Singer, and his attorneys.
Nothing can kill the growth of the commercial drone industry so much as bad laws and misguided regulations. And much as we discuss the issues surrounding federal regulation of drones, the industry faces equally difficult challenges at the state level, where an odd coalition of reactionaries from both the left and far-right have clamored for strict regulations on the use of drones, if not outright bans. State legislators are feeling the heat.
Enter Florida’s new drone law.
Last week, Governor Scott signed Senate Bill 766 – called the Freedom from Unwarranted Surveillance Act (“FUSA”) – into law. This new law adds language to Florida’s existing drone law, found at Section 934.50, Florida Statutes, providing for additional protections against drone surveillance, as well as providing a private right of action for violations.
Some have warned that the law will lead to a wave of litigation. For reasons that I will explain in a moment, I am not so sure. In any event, the law is definitely an example of poor draftsmanship, and it unfairly targets drone technology in a way that seems hypocritical. But its scope does not appear to be as broad as others have suggested.
First, some background:
In Florida v. Riley, the U.S. Supreme Court held that a police officer did not conduct a “search”, for purposes of the Fourth Amendment, when he observed a marijuana grow house from a helicopter that crossed the defendant’s property at 400 feet AGL (does that number seem familiar?). Relying on its prior opinion in California v. Ciraolo, in which police inspected the backyard of a house from a fixed-wing aircraft that was flying at 1,000 feet, the Court reasoned that “the home and its curtilage are not necessarily protected from inspection that involves no physical invasion.”
One might not like it, but for nearly three decades Riley and Ciraolo have been the standard for what constitutes a reasonable expectation of privacy on property as viewed from the air.
Thus, perhaps the most striking aspect of Florida’s FUSA is that it creates a “drone exception” to Riley and Ciraolo:
A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.
In other words, you have no reasonable expectation of privacy if you’re observed from a manned aircraft, but you do have such an expectation of privacy when observed from a drone. Go figure.
The statute contains a number of exceptions, such as when law enforcement has obtained a search warrant or when exigent circumstances exist. It also enumerates exceptions for commercial operations, such as land surveys, power grid inspections and, oddly enough, cargo delivery.
But the first commercial exception paragraph is likely to cause some problems. It starts out well enough, excepting images captured:
By a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license.
That would seem to cover realtors, doctors, and lawyers, right? I’m just kidding. Lawyers and doctors don’t really need to spy on people.
Well, actually, lawyers do hire “agents” and “contractors” to spy on people. They’re called private investigators. And herein lies a problem:
However, this exception does not apply to a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.
In other words, if you’re a licensed private investigator, No exception for you! Which, by extension, means that lawyers also don’t get an exception. Unless they’re lawyers for the state, in which case they can get a search warrant. See how that works?
Speaking as a litigation professional, this is rather silly. Private Investigators are often called to check on whether someone is actually residing at a particular residence, or is hiding out to avoid service of process. Perhaps the legislature couldn’t figure out how to carve a narrow enough exception, or perhaps too many legislators have been burned by divorce lawyers?
But the part that’s causing a lot of heartburn is the civil remedies provision:
The owner, tenant, occupant, invitee, or licensee of privately owned real property may initiate a civil action for compensatory damages for violations of this section and may seek injunctive relief to prevent future violations of this section against a person, state agency, or political subdivision that violates paragraph (3)(b). In such action, the prevailing party is entitled to recover reasonable attorney fees from the nonprevailing party based on the actual and reasonable time expended by his or her attorney billed at an appropriate hourly rate and, in cases in which the payment of such a fee is contingent on the outcome, without a multiplier, unless the action is tried to verdict, in which case a multiplier of up to twice the actual value of the time expended may be awarded in the discretion of the trial court.
This sounds scary, and it is. Attorney’s fees typically add up to an amount that is many times an actual damages award for these kind statutory remedies. Some have suggested that the mere threat of a civil lawsuit poses a major hindrance to the development of commercial drones. But does it really?
Let’s go back and look at what the statute prohibits: It says that a person
may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image. . . .
So, a plaintiff would have to prove that the defendant had a specific intent to conduct surveillance on the person or property captured in the image. In other words, you’re not liable for capturing images by mistake, or even incidentally. You have to have a specific intent to conduct surveillance.
That is likely to be a very tough standard for a plaintiff to meet. Discerning plaintiff lawyers (and there are many, believe it or not) might decide it’s not worth the trouble.
But keep in mind that (a) there are a lot of hungry lawyers on the street; (b) questions regarding intent are put to juries; and (c) juries have a way of being unpredictable. So, you might have a lot to think about.
If you have concerns about compliance with Florida’s new FUSA, don’t hesitate to drop me a line or give me a call, via the “Contact” page at the top.
UPDATE: Every so often, I need to remind readers that nothing on this blog should be taken as legal advice. My posts are intended to provide the public with general information, and some light academic discussion. If you need legal advice, please call a lawyer.
Anyone who has studied the law is likely to be familiar with the issue of federal-state preemption. The doctrine may be generally described as, where the Constitution grants a power to the federal government to regulate an activity, and Congress exercises that power, state laws that contradict or undermine federal law are preempted and therefore invalid.
No one seriously questions whether Congress has authority under the Constitution to regulate the National Airspace (NAS), and no one questions the authority of the FAA to carry out enforcement of Congress’ mandates to regulate the NAS. We discussed the scope of that power in this post, and the problem of drawing a bright line on the limits of the NAS. The full answer to the question remains unsettled, but the argument is over where to draw the margins, not over the power, itself.
Thus, even though Oklahoma might purport to grant its citizens immunity from prosecution when shooting down a drone (or a town passes a law encouraging its citizens to shoot down drones), the shooter could still be prosecuted under federal law, which would completely pre-empt any state law immunity. If you think we’re kidding, consider the discussion of Gonzales v. Raich in this post. The feds might decide not to enforce the law against a person, but that is a matter of prosecutorial discretion.
This is why state and local governments need to be very careful about incentives they put in place vis a vis drones. They could very well mislead their citizens into earning time in federal prison.
